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File-Stamp Not Dispositive As To When Notice Of Appeal Was Filed

Our readers know that the date of filing of a Notice of Appeal in the “home county” establishes compliance with Appellate Rule 3.  But is the file-stamp on that notice of appeal unassailable?  On Wednesday, the North Carolina Business Court answered that question in the negative.

In Azure Dolphin LLC v. Barton, the deadline for filing the notice of appeal was 1 November 2017. The notice of appeal filed in the Forsyth County Superior Court contained a 2 November 2017 file-stamp.  You might guess, game over!  But not so fast.

In response to a motion to dismiss the appeal as untimely, appellants produced an affidavit from a Forsyth County Clerk’s office employee. The affidavit stated that the notice of appeal had been received by the clerk’s office on 1 November 2017, but that the date stamped onto the notice of appeal was incorrect due to “an equipment error.”

Characterizing the affidavit as “compelling,” Judge Conrad concluded that appellants had “carried their burden” of demonstrating that the notice of appeal was timely filed.   Judge Conrad cited Hefner v. Mission Hosp., the “FedEx Nightmare” case that Matt blogged on approximately two years ago.

In Hefner, the Business Court strictly construed the facts to hold that a notice of appeal mistakenly delivered by FedEx to the Sheriffs’ office (in the same building as the clerk’s office) was not timely filed.  Mack Sperling’s blog has more details on the twisted facts that resulted in the notice of appeal being file-stamped 12 days after it was delivered.  The court dismissed the appeal even though an affidavit from the Sheriff’s office stated that its policy was to deliver misrouted mail to the Clerk the next business day.  At the time, Matt queried whether an appellant could overcome an untimely file-stamp by producing more compelling evidence that the notice of appeal had been timely submitted to the clerk’s office.

Azure Dolphin stands for the proposition that an affidavit from an employee of the clerk’s office stating that the file-stamp date is incorrect can establish that a notice of appeal was timely filed.

Could a more detailed affidavit or slightly different facts in Hefner have changed that outcome?   For example, what if the affidavit had stated that the notice of appeal had been timely received by the clerk’s office, but due to a personnel error had not been file-stamped for several days?  Alternatively, should a distinction be drawn between strict construction of jurisdictional rules, as opposed to strict construction of jurisdictional facts?

Let me know your thoughts in the comments below.

–Beth

H/T to Chad Archer

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2 Responses to "File-Stamp Not Dispositive As To When Notice Of Appeal Was Filed"

  • Matt Leerberg
    March 29, 2018 - 5:42 pm Reply

    Beth, your distinction between jurisdictional rules and jurisdictional facts is spot on. The factual question–whether the notice was filed by the deadline–is susceptible of proof just like any other factual question. Applying a preponderance or similar standard here seems appropriate. Of course, there may be other kinds of jurisdictional facts where a different standard may be appropriate, because due process or other concerns weigh against casually finding jurisdiction. Here, though, any such concerns probably weigh in favor of finding jurisdiction, and giving the would-be appellant its day in the appellate courts.

  • Mark L Hayes
    April 6, 2018 - 10:55 am Reply

    I’ve seen multiple notice of appeal time-stamps that were impossible – like 32 October 2018 and that sort of thing – so it only makes sense that affidavits should be able to work around equipment failures.

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